WHO ABUSED JOSH KLAVER — AND WHO KNEW ABOUT IT?

DIDN'T EXPECT to find Priscilla Merek after all these years, or for her to remember the case of Joshua Klaver, for that matter.

Her name had been buried deep in Josh’s custody file from the 1980s, when she was a social worker for the county’s Child Protective Services agency. During the Klavers’ four-day custody trial before Judge James Stewart back then, she had testified about Josh’s fear of his father and the abuse he suffered at his hands.

For months, I had been reporting this story, tracking down former wives and girlfriends who had loved, then loathed K.W. Klaver, the 6-foot-2 former sheriff’s deputy with the bushy mustache. I found his former colleagues whose investigation into Josh’s death in 1989 was so thin it was relaunched a year later, then again in 2014.

Now, I was looking for somebody whose only job was to look out for Joshua.

That person, it turns out, lived just a couple of blocks away from my house.

I knocked on the door of the Spanish-style bungalow and there she was — a tiny, white-haired woman.

Priscilla Merek, age 84, smiled sweetly.

Standing on the stoop, I was just starting to ask if maybe, by chance, she remembered the case of Joshua Klaver, the son of the sheriff’s deputy, when she interrupted.

“You mean that (expletive) who killed his son?”

Priscilla Merek: “The officers weren’t going to arrest him,’’ the former social worker said of K.W. Klaver. “He’s one of them.”(Photo by LiPo Ching)

And with that, the door swung wide and the retired social worker invited me into the living room to take a seat in her highback chair and listen to a story she hadn’t told in 26 years.

What did she remember about this case of the 10-year-old boy found hanging in the family barn? It must have been one of hundreds or even thousands of cases over her career.

Turns out, she remembers a lot.

Despite her bold statement, she admitted she doesn't know whether KW killed his son, but she has her suspicions.

She told me why she came to believe Klaver played a role in Josh’s death — that she thought he was abusive and intimidating and had terrified the boy, that she didn’t believe a 10-year-old would hang himself.

When she finished, I asked her a question that Klaver had asked me in his own defense: Why, if he had done all these terrible things, was he never arrested, for child abuse if nothing else? She rolled her eyes, then looked at me incredulously.

“He was a police officer,” she said. “The officers weren’t going to arrest him. He’s one of them.”

Video: Social worker Priscilla Merek and Josh Klaver’s mother Kathy Atkins talk about the incident at Josh’s school, when he accused his father, K.W. Klaver, of abuse.

‘They were trying to intimidate me’

She met Klaver for the first time when she was called to Rucker Elementary School in Gilroy in 1985. Josh had told his teacher that his father had knocked him into the garbage cans, bruising him, and he was too scared to go home.

Klaver showed up at the school with two fellow deputies, Merek said. She didn’t know their names, but she said all three proceeded to form a circle around Josh and question him — a shocking breach of protocol that clearly intimidated the boy, Merek said.

The deputies were about to send Josh home with his father, she said, when she objected: “You do not have the right to send him home,” she told the deputies.

The trio wasn’t just trying to intimidate Josh, she said, “they were trying to intimidate me, all three officers, trying to intimidate me to let him go home.”

Klaver, she said, “was a very dominating person who was going to win.”

She was so alarmed that she contacted the deputies’ supervisor, and after a trip to the station, Josh went home that day with his mother. Merek said she recounted that story during the custody trial — and also testified about the second time she met Klaver, when she was sent to his house in San Martin to evaluate his home. He stood on his stoop, hands on his hips and gun at his side, she said, and made her walk to his door through his pack of snarling dogs. Klaver later told me he doesn’t remember the encounter.

“I have never been scared in my life,” said Merek, who has dealt with thousands of defensive parents over her career, “but I was very concerned about what he might do to me.”

Despite her fears, she found nothing out of place in Klaver’s house.

She learned of Josh’s death from her boss, Henry Collada, head of the county’s Family Court Services, who died years ago. He told her a detail few people knew — that when Josh died, his knees were bruised and scraped. She said Collada told her he feared Josh had been dragged, and both he and Merek quietly believed Klaver had something to do with it.

For more than a year, however, “we didn’t tell anybody because I was afraid of that guy; so was Collada,” she said. “Come on, who are we? Hank Collada and I were just two people talking about what we really thought. What could we do?”

‘We couldn’t prove anything’

In late 1990, however — more than a year after Josh died — she and Collada were summoned to appear together before the county’s Child Death Review Team, a group of professionals in the medical and law enforcement fields that study unexpected child deaths to determine whether they could have been prevented and whether abuse was involved.

Merek said she told them about testifying in the custody trial, about the intimidation at the school, about Judge Stewart’s finding that Klaver had abused Josh in the years before he died.

The group listened, rapt, she said, and appeared surprised that Klaver had never been arrested for abuse.

“They were concerned,” Merek said. “If the court knew all this, why didn’t they do something about it?”

It wasn’t just the abuse Merek and Collada told the board about, though. They also confided their fears.

“We both believe this man killed the child,” she says she told the panel. But she knew she had no evidence. She wasn’t at the barn that night.

“We couldn’t prove anything any more than anybody could prove anything,” she said, “and the people who investigated were his pals.”

She never heard another word from the Child Death Review Team about the case, she said, and hadn’t talked about it since.

Dr. Michelle Jorden, the county medical examiner, led the reinvestigation team. (Photo by LiPo Ching)

Re-enacting a hanging

If there were any minutes of that 1990 hearing, any file or written conclusions or records, Dr. Michelle Jorden couldn’t find them. She is not only the county’s chief medical examiner, but also the chairwoman of the current Child Death Review Team.

I sat down with Jorden in the conference room of the medical examiner’s office as she explained how she had searched extensively through the old death review team’s files for the Klaver case but couldn’t find any files from that era.

After the sheriff relaunched the investigation, Jorden decided to reconvene the Child Death Review Team, and went about gathering evidence to present to the panel. Armed with the autopsy report conducted the day after Josh’s death, as well as the original police and coroner’s reports, she headed in July 2014 to the old Klaver barn.

She hoped once and for all to clear up something that wasn’t definitive after the first investigation 25 years ago: Was it possible for Josh to hang himself? Was he tall enough? Was the chair high enough? Was the rope long enough?

The files she carried contained enough information to lead her to Klaver’s slaughter room on the left side of the barn and spot the orange metal meat rail from which Josh hung — the same one still bolted to a beam in the barn today.

But some key facts, photos and evidence were missing from the report, she said. There were no photos or measurements of the chair found near the meat rails, or of the rope to determine how thick or how pliable it was. All the report listed about the rope was that it was an 8-foot-long, woven lead rope. But Jorden didn’t know for sure whether Josh was fully or partially suspended, whether he was facing back or front, whether he had tied a knot on top or made a noose for his neck. Still, Jorden pressed ahead.

“It’s 25 years later,” Jorden said. “I’m doing the best I can do.”

Above: Dr. Michelle Jorden visited the barn behind the Klaver's former home in 2014 to determine if Josh was capable of hanging himself. (Photo by LiPo Ching)

Josh’s body was found hanging from this orange meat rail. The medical examiner, who was about the same size as Josh, tested her own weight on the bar. (Photo by LiPo Ching)

89 inches from the floor to the meat rail

Joshua Klaver was big for his age, measuring 4-feet-11 inches tall and 115 pounds in the autopsy report.

Jorden stands five inches taller and three pounds heavier, a small enough disparity, she figured, to use her own frame to stand in for the 10-year-old boy.

Police experts say it’s almost impossible to recreate a scene a few days after a possible crime, much less 25 years later.

Other than K.W. Klaver himself, who found Josh first, Klaver’s ex-wife, Bobbi Klaver, was the only other person in the barn that night when Josh’s body was discovered. So investigators called her for help. The chair, Bobbi remembered, was heavy plastic, like something you’d find at a kitchen table. The rope, she said, was probably a lead rope they kept in the barn back then — the thick kind with a clamp on the end used like a leash for horses.

So Jorden borrowed a kitchen chair from the new owners of the barn and a rope they had on hand. She jotted down measurements — 89 inches from the floor to the meat rail, which was 30 inches taller than Josh. With Sheriff’s Det. Frank Zacharisen taking pictures, she climbed onto the chair and, testing the strength of the rail, grabbed it with both hands.

Then, with her full body weight, she dangled. It was clear: The rail supported her weight, so it could have supported Josh’s.

But wait. I had to stop Dr. Jorden there. What about the rope? Without it, how could she know if Josh had enough slack to tie a knot? Or perhaps too much slack to hang? Did he even tie a knot? Or was there a noose? If Klaver had cut Josh down, wouldn’t the rest of the rope have been tied to the rail?

There were no photos to know, and the original police report didn’t explain. And Bobbi Klaver wasn’t certain how or whether the rope was tied.

But Jorden didn't concern herself with questions she would never be able to answer. Instead, she focused on one she could: Whether a standard horse's lead rope — which Bobbi Klaver had described — matched the width of the marks on Joshua’s neck.

“It was clear to me that, yes, the mark on Josh’s neck could very well have been caused by a lead rope,” she said. “I didn’t have all the items. I tried to get as much information of the description as I could.”

Whether Josh could even tie a sturdy knot to the meat rail wasn’t critical, either, she said.

“My understanding is, this is not a boy who didn’t know how to work a rope,” she said. Still, a knot wasn’t necessary, she said.

“He could have draped it around, he could have wrapped the rope around a couple of times. You don’t necessarily have to have a noose,” she said. “You don’t have to be fully suspended. When you block blood vessels in your neck, you lose consciousness in 10 to 20 seconds.”

She wouldn’t go into all the details of her 2014 findings. But in many respects, her conclusion came down to measurements.

“Was he tall enough to get the rope over?” Jorden asked. After climbing on the chair and subtracting her extra five inches of height, “the conclusion was — yes.”

A ‘co-existing component’ to suicide

Another thing mattered, too, she said. Josh was troubled and torn. “This was a child who was saddened.”

She took what she had learned to the Child Death Review Team, which keeps its deliberations confidential. The group spent a full three hours in late July 2014 discussing nothing but Josh’s case, Jorden said. She wouldn’t say whether anyone testified, but Merek, the social worker, said no one ever contacted her to reprise her testimony from 1990. No one asked Joe Fortino, one of the deputies who was at the barn the night of Josh’s death, to talk about his memories either.

But Jorden presumably went over the autopsy results, which included “ill-defined bruised areas” on the front of Josh’s right shoulder and kneecaps that were “covered by abrasions and bruise marks.”

Jorden didn’t consider any of those bruises or abrasions “that glaring or blaring for any type of foul play,” she said.

“As you know, 10-year-olds can commonly get abrasions and bruises on their knees,” she told me.

When the meeting was over, the group of 22 professionals — whose job is to determine how a child died, but not to assign blame — came to its own conclusion. And it echoed the findings in 1989 of the original medical examiner.

Cause of death: hanging.

Manner of death: suicide.

But there was more.

Along with classifying Josh’s death as a suicide, the Child Death Review Team concluded something else for the first time — something that Josh’s mother had tried to raise for decades. Along with suicide, Jorden wrote in her conclusion, there was a “co-existing component of current or past child abuse.”

Video: Bobbi Klaver, Judi Werner and Kathy Atkins talk about the allegations of child abuse in the Klaver household.

“It was the conclusion after discussing the case with the experts in the room that child abuse was a factor in his death,” Jorden told me. “I want to make it very clear, it’s not that this was a case of Josh being beaten and hanged.

“What we’re saying is there was a history of child abuse that could have played a part in his psyche to commit the act.”

For the first time in 25 years, abuse had become part of the official story of Josh’s death.

The report did not mention K.W. Klaver, or anyone else’s name, for that matter, and Jorden refused to elaborate on the specific abuse.

I pressed her, but she said she was forbidden by law to speak about it. A letter she sent to sheriff’s investigators explaining the panel’s decision gave me a clue: It listed three police reports from the 1980s — but the sheriff’s office said California law prohibits it from releasing details on child abuse reports. It only releases dates and addresses.

I was able to piece things together: Two of the calls were to Josh’s school and involved his father. The other was from the time Klaver reported Atkins over Josh’s puffy eye — that’s when she said the boy took a spill on a homemade bike ramp.

Those reports all happened before the 1986 custody trial in Judge Stewart’s courtroom. The judge had called Atkins “a nurturing mother,” and gave her custody — so it’s clear who Stewart considered the abuser.

I asked Dr. Jorden whether the death review team had looked at Stewart’s ruling — where he listed eight acts of abuse that Josh had suffered at the hands of his father, including whipping, kicking and hitting. Surprisingly, she said, it had not.

“This is the first time I'm hearing of it,” she said.

I would soon find out, though, that Dr. Jorden wasn’t the only one in Josh’s story who didn’t know about Judge Stewart’s ruling.

The county’s Child Death Review Team — a group of medical and law enforcement professionals who investigate child deaths — changed the classification of Josh’s death: It added child abuse as a factor.

‘Spare the rod, spoil the child’

What the panel called a “co-existing component” was, according to my interviews and court records, years of a boy’s suffering — suffering that people knew about at the time, suffering that perhaps could have been stopped.

“Some of these things we didn’t learn about until the witnesses came” forward in Josh’s custody trial, Constance Jimenez, the lawyer who represented Josh’s mother, told me recently. “Our jaws dropped more than once in the course of that trial.”

But David Sussman, Klaver’s lawyer, gave me a different perspective. He said that Klaver operated with an old-fashioned “spare the rod, spoil the child” mindset, and he and Klaver were both shocked at the gravity of the judge’s conclusions. As Sussman put it, “when it came out of K.W.’s mouth, it didn’t sound like the atrocities Judge Stewart had interpreted.”

The judge, Sussman believes, may have overreacted.

“I could be wrong on that, but I think K.W. was trying to discipline a difficult child in a style that no one would have made a big fuss about 20 or 30 years earlier,” Sussman said. “It certainly doesn’t justify it, but I think he was a tough guy. His kid was going to be a tough kid. That’s the way he was raised. He felt that he turned out alright and this is how you do things.”

“Our jaws dropped more than once in the course of that trial.” said Constance Jimenez, the lawyer who represented Josh's mother Kathy Atkins. (Photo by LiPo Ching)

“I think K.W. was trying to discipline a difficult child in a style that no one would have made a big fuss about 20 or 30 years earlier,” said K.W. Klaver’s attorney David Sussman. (Photo by LiPo Ching)

What did Judge Fogel know?

Something else just didn’t make sense. Why didn’t Jeremy Fogel — the last judge with his hands on the custody case — appear moved by Judge Stewart’s earlier conclusion that Josh was “terrified of being hurt or physically punished by his father”?

Why, a year and a half later when Josh was 9, did Fogel — who would become a respected federal court judge — modify Stewart’s ruling, giving partial custody back to Klaver? What did Fogel know that the court files and Josh’s mother weren’t revealing?

When I reached Judge Fogel almost three decades later to ask, his answer was startling: It was what he didn’t know.

Like most people I interviewed, Fogel says Josh’s case has always stuck with him. Fogel was in his first year on the family court bench when the case landed on his busy docket.

He presided over an emergency hearing called after Klaver sought custody again. Josh had pulled a knife on his mother, and Klaver objected when she committed Josh into the mental health unit at a San Jose hospital.

Fogel remembered the case for all the obvious reasons: It was so contentious. Klaver was a sheriff’s deputy. Josh had died a year later. “That’s not something you forget,” he said.

Video: "I don’t remember anyone citing all those horrible facts. If I heard that, it’s something that would have made a difference," said Judge Jeremy Fogel discussing the details of alleged abuse of Josh Klaver by his father, K.W.

What he didn’t remember, however, was any mention of the abuse that Judge Stewart had laid out in gut-wrenching detail. Like Dr. Jorden, Fogel told me he never saw that ruling.

I read him Stewart’s findings — the whipping, kicking and hitting.

“Wow, I honestly don’t remember that. I don’t remember anyone citing all those horrible facts,” he said. “If I heard that, it’s something that would have made a difference.”

Fogel asked for a couple of days to look into it, then called me back. The transcript of the hearing is no longer available, but he was able to acquire the documents submitted to him from both sides. While there was a reference to Klaver’s use of “corporal punishment,” there was no mention of the acts of abuse outlined by Stewart.

“I remember thinking at the time that what I wanted more than anything was for the parents to stop blaming each other for things and focus on the kid,” Fogel told me. “The idea was to get them to do that, not knowing there was a finding of potentially criminal abuse on the part of the dad.”

He didn’t want to speculate why Judge Stewart — who had died in 2004 — apparently didn’t refer the case to the district attorney in the first place, he said, or why the abuse findings weren’t made clear to him during the emergency hearing.

In his ruling granting joint custody and requiring therapy for Josh, Fogel cited the evidence he had at the time. He quoted child psychologists who had evaluated the troubled boy.

“Both doctors state the child is close to being psychotic,” Fogel wrote. “The main cause is the conflict between the parents.”

It’s a ruling that would devastate Josh’s mother for decades. And soon, it would come back to haunt her once again.

About the author

Julia Prodis Sulek specializes in breaking news and narrative storytelling at her hometown paper, the Mercury News, where she has worked since 1998. Part of the team that won a 2017 Pulitzer Prize for coverage of the Ghost Ship fire, she has also been a Pulitzer finalist in feature writing for her coverage of the Oklahoma City bombing and other stories for The Associated Press. Contact her at jsulek@bayareanewsgroup.com